Ink and headlines splashed Wendy Howard’s verdict across pages and screens after jurors acquitted her of first- and second-degree murder, but stuck on voluntary manslaughter.
After a hung jury, the Kern County District Attorney’s Office was able to retry Howard for voluntary manslaughter, and a Friday hearing was held to determine Howard’s fate. Howard testified during a 10-day trial that she shot her ex-partner, Kelly Pitts, in self-defense after he sexually and physically abused her and her children. Prosecutors said she was seeking revenge and committing “vigilante justice” when she killed him.
But then defense attorney Tony Lidgett said during the trial that Howard was actually acquitted of every charge, and prosecutors can’t re-examine the same facts. He then entered a “once in jeopardy plea” and Friday’s hearing was concluded.
Lidgett’s response stems from several decisions made by attorneys and Kern County Superior Court Judge Charles Brehmer during the trial and when jurors were instructed in the case. These moves are unusual and unique, local defense attorneys said.
“I’ve never done this before,” defense attorney Mark Anthony Raimondo said of Howard’s trial.
THE CASE
Howard was in a relationship with Pitts during which he strangled, beat and attempted to rape her, she previously testified in her own defense.
But she escaped and only encountered him again 14 years later in 2019. That’s when she found out that their daughter, Bayley Frost, had been sexually abused by her father in her mid-teens.
The Tehachapi Police Department launched an investigation into Frost’s allegations about her father. They told Howard and her family to act nonchalant around Pitts to ensure he remained unaware of their investigation.
Pitts, who lived on the same street as Howard in Tehachapi, asked on June 5, 2019 if he could bring his grandson over to her house to play with her children. Howard said yes.
Before Pitts’ arrival, Howard testified, she learned of another victim who had also endured sexual abuse by Pitts.
Howard and Frost discussed Pitts being confronted with the evidence of his molestation of Frost, and Howard put a gun in her waistband. She met him outside and ended up shooting him.
Chief Deputy District Attorney Eric Smith said Howard’s anger at Pitts bubbled over and overwhelmed her before she shot Pitts. He showed text messages of her emotions before Pitts died, saying she wanted justice for the man who abused her.
Howard testified that she shot Pitts because she feared him after enduring abuse at his hands. She also testified that she wanted to protect her children who were nearby.
Jurors acquitted Howard of involuntary manslaughter in addition to first- and second-degree murder after the 10-day trial on Oct. 21. However, jurors had two options when weighing voluntary manslaughter: they could find her guilty of that charge done in imperfect self-defense, or done in the heat of passion.
Seven jurors thought she was guilty of voluntary manslaughter in the heat of passion, while five called for an acquittal. She was acquitted of voluntary manslaughter in imperfect self-defense.
A gag order prohibits lawyers from talking about the case.
LEGAL PROCEDURE
It is highly unusual for jurors to be allowed to weigh the components of voluntary manslaughter separately, said local defense attorneys not involved in this case.
Typically, jurors will consider voluntary manslaughter as one charge. But Brehmer splitting the charge is something attorney Raimondo has never seen.
“It doesn’t happen often,” local defense attorney Jared Thompson agreed.
The dual charge is what enabled Howard’s attorney, Lidgett, to enter a one-time plea.
Lidgett said during Friday’s hearing that he had spoken with defense attorneys and appellate attorneys about this case and Howard was cleared of voluntary manslaughter. That’s because jurors have already returned a not-guilty verdict on that charge, so the DA shouldn’t be able to re-examine the same facts, defense attorneys said.
A single jeopardy plea stems from the U.S. Constitution and California Constitution, Raimondo said. This is to ensure that defendants cannot be retried on the same charges once they have been acquitted, lawyers explained. Exceptions to this rule can happen if there is jury tampering or bribery.
“It’s a very, very complicated issue,” Raimondo said.
A motion date has been set for Feb. 21 for Lidgett to argue how a one-time plea should remain in this case. Brehmer said during the hearing, the attorneys had an “extensive” discussion about a resolution to the case, but were unable to come up with one. He did not address the issue further.
Lidgett could ask the appeals court to step in if Brehmer denies the motion. He can argue how an open plea remains in this case and 5th District Court of Appeal judges can vacate the trial court’s ruling based on this argument, Thompson said.
If an appeal is filed, a hearing will not take place until a decision is rendered.
But Raimondo also doesn’t see the DA trying to try Howard again for voluntary manslaughter – Howard can get on the stand and say the murder was planned, he said.
“The DA spends her entire career trying to prove that people did not act in the heat of passion,” said Raimondo. “It will be very, very difficult for them to argue in the heat of passion.”
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